Gujarat High Court

Shantinagar Shela Cooperative Housing ... vs Bileshwar Corporation on 20 June, 2023

Author:
Rajendra M. Sareen

Bench:
Rajendra M. Sareen

C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 203 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 203 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 203 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copy NO
of the judgment ?

4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?

==========================================================
SHANTINAGAR SHELA COOPERATIVE HOUSING SOCIETY LTD
Versus
BILESHWAR CORPORATION
==========================================================
Appearance:
MR SN SOPARKAR SENIOR ADVOCATE WITH
DHANESH R PATEL(8226) for the Appellant(s) No. 1
MR MIHIR JOSHI, SENIOR ADVOCATE WITH
MR JIGAR P RAVAL(2008) for the Respondent(s) No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 20/06/2023

CAV JUDGMENT

1. Present Appeal From Order under Order XLIII Rule
1(r) read with
Section 104
of the Code of Civil Procedure,

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1908 ("
CPC
" for short) has been preferred by the appellant -
original defendant against the interim injunction granted by
the learned Principal Senior Civil Judge, Sanand ("trial
court" for short) vide order dated 30/11/2022 passed below
Ex.5 in Special Civil Suit No.407 of 2017 (Old Special Civil
Suit No.272 of 2013.

2. FACTS :

2.1. The appellant is a Co-operative Housing Society
registered under the
Gujarat Co-operative Societies Act,
and the respondent is a Partnership Firm. As per the
plaint, the respondent is in the business of buying and
selling of land and development.

2.2. The respondent had filed Special Civil Suit No.272 of
2013 before the learned Principal Senior Civil Judge,
Mirzapur, Ahmedabad, against the present appellant inter
alia seeking specific performance of an Agreement-to-sell
("ATS" for short) dated 22/12/2006 and an undated
Memorandum of Understanding ("MOU" for short) allegedly
executed between the parties. Along with the suit, the
respondent had also filed an application for interim
injunction. Thereafter, the suit was transferred to the
learned Principal Senior Civil Judge, Sanand and
renumbered as Special Civil Suit No.407 of 2017.

2.3. On 11/06/2013, the learned Principal Senior Civil
Judge, Mirzapur issued summons to the appellant and
immediately on receipt of the summons, within 30 days, on
29/6/2013 the appellant preferred an application under

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Order VII Rule 11 of the CPC
inter-alia on the ground that
notice under
section 167
of the Gujarat Co-operative
Societies Act was not issued by the respondent to the
registrar. The respondent filed its reply to the application
under
Order VII Rule 11 of the CPC
.

2.4. During the pendency of the suit, as there was
possibility of settlement, on 16/7/2018, the appellant filed
a purshis before the learned trial court indicating its
willingness to settle the entire dispute.

2.5. In 2020, the appellant and Radhe Developers (India)
Ltd. filed Special Civil Suit No.51 of 2020 before the
Additional Senior Civil Judge, Sanand against the
respondent inter-alia praying to declare the ATS, MOU and
booking letters are unenforceable.

2.6. Thereafter, the respondent after a period of 9 years,
moved an application on 22/6/2022 before the learned trial
court below inter-alia praying that the application Ex.Nos.5
and 15 be heard together and to also close the appellant's
right to file a written statement and reply to the Ex.No.5.

The learned trial court partly allowed the respondent's
application on the very day and closed the appellant's right
to file a written statement and reply to the application Ex.5.

2.7. On 06/07/2022, the learned trial court rejected the
Suit under
Order VII Rule 11 of the CPC
, against which the
respondent preferred First Appeal No.2320 of 2022 on
16/07/2022 before this Hon'ble Court. On 08/08/2022, the

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co-ordinate Bench of this Court passed the following order:

"2. Learned advocate Mr. D.C. Dave assisted by
learned advocate Mr. Saurabh Amin insisted
for interim relief. According to learned Counsel
many parcels of the land have already been
purchased in the interregnum and, therefore,
there shall be need for some protective order.

3. Mr. Pandya, since has filed his appearance
today he requires time of nearly two weeks to
take instructions and file his affidavit-in-reply.
However, in the meantime, he has on
instructions stated that no change will be
effected presently whatever is the status shall
continue. He shall provide the details of the
status of these lands as on today in writing
and there shall be no change effected till the
next date of hearing. On the next date of
hearing, concerned authorized person shall be
present and apprise this Court about the
present status of the property in question."

2.8. This interim arrangement made on the appellant's
statement above came to be extended from time to time
until the disposal of the First Appeal.

2.9. On 06/10/2022, co-ordinate Bench of this Court
allowed the First Appeal. However, insofar as the interim
arrangement was concerned, this Court observed as follows
based on the appellant's statement: -

"17. So far as Annexure-B (from page 134 to

141) is concerned, those are the original
allottees. Any transfer in the interregnum to

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them shall be accounted separately.

Considering the fact that there is a serious
dispute in relation to the list from page 142
to 145 it is volunteered by the learned
advocate, Mr.Bhadrish Raju on getting
instructions that the respondent shall not be
dealing with the said list for a fortnight for
the purpose of transfer or otherwise in any
mode or manner.

18. Both the parties to co-operate with the
trial Court which shall initiate the hearing
of Exh.5 within a period of two weeks from
the date of receipt of a copy of this order and
shall decide the same within a period of four
weeks thereafter

19. Without prejudice to the rights and
contentions as may be raised by the parties
that this arrangement has been made which
shall be also subject to the order that would
be passed by the trial Court concerned after
hearing both the sides on merits of
injunction application. None of the
observations made by this Court in this
order, while considering the matter on merit,
shall in any manner prejudice the rights of
either side."

2.10. On 18/10/2022, the respondent moved a speaking to
minutes application, inter alia, on the following ground: -

"At the time of pronouncement of judgment,
the Hon'ble Court had been pleased to frame
a time schedule for deciding injunction
application below Exh 5 application (4 weeks
from the commencement of hearing). Your
lordship bad been further pleased to extend
the interim arrangement (recorded in Para-

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17) to operate till the Ld. Trial Court decides
the Ex. 5 application. It appears that
inadvertently, the said aspect is not reflected
in the final order dated 06.10.2022 and
hence this note."

2.11. On 19/10/2022, the appellant made a statement
before this Hon'ble Court that the interim arrangement
concerning the list from page number 142-145 of the
appellant's affidavit dated 01/09/2022 filed in the First
Appeal may continue until four weeks from the date of the
initiation of the hearing of the interim injunction application
Ex.5 by the learned trial court or until an order on merits is
passed, whichever is earlier. This Court passed an order
recording the appellant's above statement on 19/10/2022
and modified the order dated 06/10/2022 accordingly.

2.12. Thereafter, on 20/10/2022, the Suit was restored.
The learned trial court thereafter passed an order on
20/10/2022 laying out a time schedule to complete hearing
the of the application Exh.5. On 01/11/2022, the appellant
moved an application to re-open its right to file a written
statement and reply to the interim injunction application
along with the written statement and reply to the interim
injunction application, production application, and
supporting documents requesting that its right to file a
written statement and reply to the interim injunction
application be re-opened in light of the direction by this

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Court to decide the interim injunction application within a
span of 4 weeks and also in the interest of justice to ensure
that all the appellant's defenses are bought on record. On
the very day, the respondent filed its written objections to
the appellant's application.

2.13. The learned trial court rejected the appellant's
application to re-open its right to file a written statement
and reply to the application Exh.5 on 01/11/2022 against
which the appellant preferred Special Civil Application
No.22297 of 2022 and this Court was pleased to allow the
Special Civil Application and re-open the appellant's right to
file a written statement and reply to the Application Exh.5
vide order dated 09/11/2022. That inadvertently in para
27(E) of the order dated 09/11/2022 in Special Civil
Application No. 22297 of 2022, passed by this Court, it has
been mentioned that "Interim arrangement as noted by the
Division Bench of this Court vide order dated 19/10/2022
shall continue for a period of three weeks from the date this
order is submitted to the learned Civil Judge concerned.".

2.14. On 12/11/2022, the appellant challenged the
order dated 06/10/2022 (as modified by the order dated
19/10/2022) passed by this Court in First Appeal No. 2320
of 2022 before the Hon'ble Apex Court vide SLP(C) No.
20976 of 2022.

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2.15. Thereafter, as the appellant's request to file an
additional written statement was allowed by this Court in
Special Civil Application No. 22297/2022, on 17/11/2022,
an additional written statement was filed before the learned
trial court and even the order dated 09/11/2022 was served
on the learned trial court. The respondent thereafter filed its
reply to the written statement and additional written
statement along with documents to be relied upon on.

2.16. On 25.11.2022, the Hon'ble Apex Court was pleased
to issue notice in SLP(C) No. 20976 of 2022 and also
observed that no final judgment may be passed in the Suit.
The Hon'ble Apex Court also recorded in its order that "...
Till the disposal of the said interim injunction, status quo
with respect to the property in dispute shall be maintained
by the parties. However, the appellant submits that it has
been inadvertently recorded by the Hon'ble Apex Court that
status quo has to be maintained by the parties till disposal
of the interim injunction, because on 25/11/2022, the
Hon'ble Apex Court had only directed that the interim
arrangement between the parties shall continue till disposal
of the Exh.5 application and also because there was no
order of status quo existing qua the Suit lands. The
appellant submits that the appellant has filed IA No.
193876 of 2022 to modify the above order.

2.17. That on 29/11/2022, the appellant and respondent

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completed their oral arguments with respect to the
application Exh.5 and the appellant even submitted its
written submissions. The learned trial court allowed the
application Exh.5 vide order dated 30/11/2022. That after
pronouncement of the Impugned Order, the appellant
moved an application before the learned trial court praying
that the Impugned Order may be stayed to exercise its
statutory remedy of challenging the Impugned Order. The
respondent filed its objections to the above application.
Thereafter, the application for stay came to be rejected by
the learned trial court vide order order dated 30/11/2022.

2.18. The appellant, being aggrieved and dissatisfied by
the aforesaid Impugned Order dated 30/11/2022 passed
below application Ex.5 in Special Civil Suit No.407 of 2017,
has preferred the present Appeal From Order.

3. SUBMISSIONS OF THE APPELLANT :

3.1. Mr.Soparkar, learned senior advocate for the appellant
has mainly based his arguments on the points of [1]
limitation [2] novation [iii] non-joinder of parties [iv]
unamended
sections 13
,
and
16(1)(c)
of the Specific
Relief Act [v] bar of
section 167
of the Gujarat Co-operative
Societies Act and [vi]
Section 10
of the Specific Relief Act.

Based upon those points, Mr.Soparkar, learned senior
advocate for the appellant has argued on the principle of
injunction and argued on the finding of the learned trial

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court.

Whereas, on the other-hand, Mr.Mihir Joshi, learned
senior advocate for the respondent has based his
contentions and arguments in reply to all the contentions
raised by Mr.Soparkar, learned senior advocate for the
appellant.

4. LIMITATION :-

4.1. Submission of appellant on limitation:

On the point of Limitation, Mr.Soparkar, learned
senior advocate for the appellant has contended that the
appellant is a registered co-operative housing society and
as per the ATS, the appellant was required to execute sale
deed for the suit land in favour of the respondent upon
payment of 50% of the total consideration and as according
to the ledger amount submitted by the respondent, they
have paid 50% of the amount of total consideration of
Rs.15,80,08,800/- on 28/8/2007. Since the 50% of the
amount has been paid on 28/8/2007, and the suit is filed
in 2013, as per Part 1 of
Article 54
of the
Limitation Act
, the
suit is beyond 3 years.

Mr.Soparkar, learned senior advocate for the appellant
has submitted that as per the rejoinder filed by the
respondent, it is the case of the respondent that execution
of the sale deed were refused after the payment of 50% of
consideration, which has taken place in the year 2007 and

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therefore, the trial court has erred in not believing the issue
of limitation.

4.2. Submission of the respondent on Limitation:

Per contra, on the point of Limitation, it has been
contended by Mr.Mihir Joshi, learned senior advocate for
the respondent that ATS does not provide for any calendar
date for executing sale deed and when there is no specific
date mentioned, Part 1 of
Article 54
of the
Limitation Act

does not apply. It is contended that ATS fixes time for
payment only and even that is not essence of the contract.
ATS clause 3 provides for fulfillment of reciprocal
obligations by the defendant society, namely (i) obtaining
clear title (ii) giving possession of land. Clause 4 and 5
further provide that seller shall obtain Income Tax clearance
certificates by 15.01.2007 and shall obtain all necessary
permissions for sale. It is further contended that the society
was not in a position to perform its part of obligation. As
such, till 2013, only two survey numbers were owned by the
appellant society and in May, 2013, though the society
cleared title of survey Nos.227 and 228, the society refused
to perform according to the terms of the ATS and the suit
was immediately filed and the suit does no barred by law of
limitation.

4.3. Finding of the Court on Limitation:-

Having heard the learned advocates for the respective

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parties, the issue which is in dispute between the parties is
as to, from which date the period of limitation starts for
filing of the suit. Admittedly, ATS and MOU are the main
documents relied upon by both the parties and there is no
dispute regarding the date of MOU. There is dispute with
respect to the date of MOU. Here in this case, the
respondent - plaintiff filed the suit for specific performance
of the ATS which is executed in the year 2006 and also
MOU which according to the case fo the appellant is
executed in the year 2007 and as per the case of the
respondent, it is executed in the year 2011. No doubt, the
learned trial court in the finding regarding limitation has
given finding that the execution of MOU is in the year 2011
and it has been considered to be the extension of time for
the purpose of ATS and the payment of Rs.11,49,60,600/-
has been given on 25/5/2011 as per the ledger which is
produced in the trial court's record vide Ex.3/22.

As such, the contention of both the parties on the
point of limitation depends upon the appreciation of the
date of MOU. There is no dispute regarding the date of ATS,
which is in the year 2006 but the MOU which is placed on
record is without date and as per the respondent, it is of
2011. It depends upon the books of accounts - ledger which
is produced through which contention regarding payment as
to upto which date the payment has been made can be
decided. Under the circumstances, this Court is of the
opinion that as the issue of limitation is of a nature

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wherein there is disputes regarding dates and payments
and hence the issue of limitation can be decided by the trial
court as a preliminary issue taking upon preliminary
evidence regarding execution of the MOU and the payment
mentioned.

5. BAR OF SECTION 167 :

5.1. Submission of appellant on bar of section 167:

So far as contention regarding question of bar under
section
of the Gujarat Co-operative Societies Act is concerned,
it is submitted by Mr.Soparkar, learned senior advocate for
the appellant that the suit is not maintainable for non-

compliance of
section 167
of the Gujarat Co-operative
Societies Act. As the suit touches the business of the
society, notice is required under
section 167
of the Gujarat
Co-operative Societies Act and notice was required to be
served at the registered address and admittedly the
respondent failed to serve such notice.

5.2. Submission of respondent on bar of
section 167
:

Per contra, it is vehemently opposed by Mr.Minir Joshi,
learned senior advocate for the respondent that the order by
which the trial court has rejected the plaint in exercise of
Order 7 Rule 11 on the point of non-compliance of issuance
of notice under
section 167
of the Gujarat Co-operative
Societies Act, in the said order, the learned trial court has
dealt with the judgement of the Division Bench of this Court

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rendered in First Appeal No.2320 of 2022 and considering
the dispute between the parties, in para 15.6 it has been
held as under :-

"15.6. Thus, considering the complexity of
the transactions involved the Court notices
that though the focal point of dispute
revolves around the suit lands of which the
Cooperative Housing society claims to have
right, based on which agreement to sell and
MOU have been executed in favour of plaintiff
firm, however, at this stage of order 7 rule
11, where one is required to look into the
pleadings only, it would be unjust to go to
hold as "touching the business of the
society"....,

It has been observed in para 15.6 of the order of the
Division Bench in First Appeal No.2320 of 2012 that, this is
not a matter which can be permitted to be dismissed on the
point of
section 167
of the Act. Thereafter the Division
Bench considered the issue of maintainability of the suit.
However, the said order passed by the Division Bench in
First Appeal No.2320 of 2022 has been challenged before
the Hon'ble Apex Court and the SLP is pending. However, at
present, as per the order of the Division Bench in First
Appeal No.2320 of 2012, the bar of
section 167
, as it has
been directed to be decided as preliminary issue by the trial
court in accordance with law at the time of hearing.

6. NOVATION :

6.1. Submission of appellant on novation:

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Mr.Soparkar, learned senior advocate for the appellant has
contended that the respondent - plaintiff in the suit has
prayed for specific performance of the ATS and MOU. It is
vehemently submitted that in the rejoinder filed by the
respondent - plaintiff in para 5, condition Nos.B and C of
ATS were reproduced and it was specifically stated that as
per the new conditions laid down in the MOU, there was a
novation in the agreement. It is further submitted that as
per
section 62
of the Indian Contract Act, the original ATS
in this case, does not need to be performed and it is the
case of the respondent. It is further submitted that in the
MOU, clause Nos.7C and 7D came to be inserted, which
has changed the nature of the agreement. Clause 7C
indicates new party Mr.Ashish Patel holds 25% in the suit
land and clause 7D states that the appellant and
respondent will jointly sell, mortgage and deal with the suit
land. As such, the agreement for sale has been converted
into a joint-selling agreement/joint development agreement
and hence, the suit for specific performance is not
maintainable. It is also contended that specific
performance of the MOU also prayed for and the
respondent has also prayed in the plaint that sale deeds in
the suit lands may be executed in favour of anyone
proposed by the respondent which indicates that the
nature of the agreement between the parties has ceased to
be an agreement for sale to that of an understanding of
development of the land, as it novated the original ATS.

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In support of above submission, Mr.Soparkar, learned
senior advocate for the appellant has placed reliance on the
decision of the Hon'ble Apex Court in the of
Manoj Kumar
Agrawal v. Dulari Bai
2006 SCC OnLine Chapter 15 para
5, wherein the Hon'ble Court has held and observed as
follows:

"....It indicates that on the wishes or choice
of appellant the sale deed is to be executed
even in the name of third person whether
such an agreement can be treated as
agreement to sale is a question debatable."

6.2. Submission of respondent on novation :

Per contra regarding contention of the appellant on novation
is concerned, Mr.Mihir Joshi, learned senior advocate for
the respondent has submitted that the contention of
novation is not raised in the in Written Statement and said
contention of novation was never raised before the learned
trial court. However, the plaintiff has prayed for specific
performance of the ATS as well as MOU on the issue of
novation being academic and suit will not fail on the ground
that ATS did not survive. It is further contended that even
otherwise, the MOU has to be read as a whole. In the MOU
all the terms of the ATS are reproduced in paragraph Nos. 1
to 6 and in 7(a) to 7(f) conditions are laid down regarding
Income Tax clearance. It is contended that all essential
conditions of ATS remained the same in MOU and in law

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there is no novation and the parties never understood it to
be so. It is submitted that all the obligation of the society to
sell the lands to the respondent - plaintiff remain the same
and therefore the arrangement between respondent -
plaintiff and Mr.Ashish Patel, which was contained in 7(c)
and 7(d), which becomes effective, after the land is sold by
society, and so it does not amount to a new agreement with
the society and it is to be interpreted accordingly. It is also
submitted that the phrase "banne-taraf-wala" used in
clause 7(d) of the MOU is to be read with clause 7(c) of the
MOU which meant the plaintiff and Mr.Ashish Patel and
not the plaintiff and the society and as per the MOU,
obligation of the society is to convey the agreed land to the
respondent - plaintiff for agreed consideration and
thereafter the respondent plaintiff can deal with the land
with Mr.Ashish Patel or anyone else.

6.3. Finding on Novation :

So far as the contentions of the parties with regard to the
issue of novation is concerned,
section 62
of the Indian
Contract Act is required to be considered, which reads thus:

"62. Effect of novation, rescission, and
alteration of contract.--

If the parties to a contract agree to
substitute a new contract for it, or to
rescind or alter it, the original contract,
need not to be performed.

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Here in this case, it appears that the respondent -
plaintiff has argued in a contradictory manner regarding
submission of novation, it has been submitted that all the
conditions of ATS remain the same in the MOU and MOU is
never considered to be novation and clause 7(c) and 7(d)
clearly which meant the respondent - plaintiff and
Mr.Ashish Patel and not the plaintiff and the society and
hence it is not a new agreement with the society. However,
in the opinion of this Court, the respondent cannot contend
both the contentions. If the respondent seeks specific
performance of the ATS as well as MOU, it is evident that
there is change in the ATS and which can be termed to be
novation of the ATS by insertion of clause 7(c) and 7(d). If it
is believed that the clause 7(c) and 7(d) were between the
respondent plaintiff and Mr.Ashish Patel, then the
interpretation of phrase "banne taraf wala" alleviates
Mr.Ashish Patel to the signatory of the MOU on behalf of
the Chairman of the society as well as in his individual
capacity, as he has been given 25% in the land and if that
is the case, right of Mr.Ashish Patel are also to be decided
while granting performance of the MOU and there is no
reason for not impleading Mr.Ashish Patel as a party to the
suit. The respondent plaintiff is seeking 100% performance
of the MOU and rights of Mr.Ashish Patel are going to be
affected and hence the respondent cannot take
contradictory stand especially considering the fact that
there is no other development agreement between the

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respondent and Mr.Ashish Patel.

Even if it is considered that clause 7(d) is not between
Mr.Ashish Patel and the respondent - plaintiff, then it has
to be appellant society and the respondent. Hence, it can be
considered that Mr.Ashish Patel has right without he being
a party or clause 7(c) and 7(d) is between the appellant and
the respondent. Hence, making the MOU is a novation
version of ATS in the form of joint development agreement,
which cannot be termed to be specific agreement to sell. It is
not specific agreement to sell, however, if it is proved by
leading cogent and convincing evidence that the insertion of
clause 7(c) is a novation on the basis of evidence, the
original ATS, which is to be enforced, will go away and
hence in the light of the observations made in the case of

Manoj Kumar Agrawal
(supra) as such an agreement can
be treated as agreement to sell in is a question which is
debatable, this issue of novation is left open to be decided
by the learned trial court but at the same time as observed,
new insertion of clause 7(c) and 7(d), right of Mr.Ashish
Patel is also to be affected if on the point of novation is to be
decided by the trial court, eitherway.

7. NON-JOINDER OF PARTIES:

7.1. Submission of appellant on non-joinder of parties:

It is vehemently submitted by Mr.Soparkar, learned senior
advocate for the appellant that the suit is bad for non-
joinder of necessary parties. It is admitted position that the

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appellant has filed the litigation against the original owners
of the suit, additionally, clause 5 of the ATS specifically
records that earlier allotment made to the allottees /
members of the society have to be cancelled. In such
circumstances, it is submitted that without adding either
the original owners of the suit land or the allottees /
members, as party to the suit, the suit is not maintainable,
as it is apparent on record that the rights of third parties
will be adversely affected, in case they are not heard. As
stated above, the MOU also reveals that 75% of the land
belongs to the respondent - plaintiff and 25% of the land
belongs to Mr.Ashish Patel. It is also submitted that in the
rejoinder before the learned trial court, the respondent -
plaintiff has admitted that they will be joining necessary
party to the suit. However, the respondent - plaintiff has
contended that the original owners, allottees / members or
Mr.Ashish Patel need not to be included as party to the
suit., whereas the respondent himself has admitted that
they are going to add necessary parties to the suit, this is
not the case where the principles of Dominus Litus will
apply.

Mr.Soparkar, learned advocate for the appellant has
placed reliance on the decision of the Hon'ble Apex Court in
the case of Mashkoor Hasan Khan vs. Zila Parishad, 1977
SCC OnLine All 185, paragraph Nos. 2 & 3 of which read
as follow:

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"2. lt may be noted that the actual bidders
or the persons in whose favour the rights
have now been granted by the Zila Parishad
were not implemented as parties to the suit
nor in Parishad wean interim injunction
made in the suit. They are not implemented
in this appeal either. In the counter
affidavit filed on behalf of the Zila Parishad
it has been stated that written contracts
had already been entered into by the Zila
Parishad for collection of carcass, bones
and hides etc. with third parties who are
not parties to the suit or to this appeal.

3. It is thus obvious that in case any
injunction is granted it will adversely affect
the interest of third parties who are not
present before this Court. In these
circumstances the interim injunction was
not in fact maintainable and it was not
necessary for the court below to go into the
merits of the application."

[Emphasis Supplied]

Mr.Soparkar, learned senior advocate for the
appellant, has also placed reliance on the decision of the
Hon'ble Apex Court in the case of
Mumbai International
Airport Private Limited Vs. Regency Convention Centre
and Hotels Private Limited and others
, reported in
(2010) 7 SCC 417 on the aspect of proper and necessary
party. Para 15 of
the said decision
reads as follow :

"A `necessary party' is a person who ought to
have been joined as a party and in whose

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absence no effective decree could be passed
at all by the Court. If a `necessary party' is
not impleaded, the suit itself is liable to be
dismissed. A `proper party' is a party who,
though not a necessary party, is a person
whose presence would enable the court to
completely, effectively and adequately
adjudicate upon all matters in disputes in
the suit, though he need not be a person in
favour of or against whom the decree is to be
made. If a person is not found to be a proper
or necessary party, the court has no
jurisdiction to implead him, against the
wishes of the plaintiff. The fact that a
person is likely to secure a right/interest in
a suit property, after the suit is decided
against the plaintiff, will not make such
person a necessary party or a proper party
to the suit for specific performance."

Mr.Soparkar, learned senior advocate for the
appellant, has also placed reliance on the decision in the
case of
Sajli Kishku vs. Talamoyee Kishku and Ors.

reported in MANU/WB/2023/2019.

Mr.Soparkar, learned senior advocate for the appellant
has further submitted that Mr.Ashish Patel admittedly being
25% of the co-owner of the suit land, would even otherwise
is a necessary party to the suit and the relief are clearly
evidently against him. It is the case of the respondent that
the phrase "banne tarafwala" used in clause 7(d) would
include only Mr.Ashish Patel and the respondent, meaning
thereby condition to sell the land would be limited to them

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only, as such, Mr.Ashish Patel becomes a party to the MOU,
even otherwise, Mr.Ashish Patel cannot be termed as
"banne tarafwala". It is also submitted by Mr.Soparkar,
learned senior advocate for the appellant that specific
performance of the contract cannot be sought without
impleading all the parties to the contract and since the
respondent has sought specific performance of the MOU in
which Mr.Ashish Patel is having right to the extent of 25%
of land, as per becomes bad for non-joinder of parties and
the phrase "banne tarafwala" clearly shows admission that
Mr.Ashish Patel is a party to the MOU.

Mr.Soparkar, learned senior advocate for the appellant
on the point of non-joinder of parties has submitted that
there are allottees in the suit land who have been allotted
plots in the land after the society came into existence and
they are having Allotment Letters to that effect and
admittedly the plaintiff was knowing this aspect, as it is
mentioned in the ATS regarding removal of the allottees
from the suit land. It is also submitted that some of the
allottees have filed application for leave to appeal being
Misc. Civil Application No.34 of 2023, which states that the
allottees are the owners of the land allotted to them and the
undivided share of the common amenities and services as
members of the societies. The allotment Dastavej, which is
produced, pertains to plot No.15 of the appellant society in
the leave to appeal specifically states that apart from the

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plot, the members have undivided rights in the common
roads and common amenities of the appellant society, which
has spread across the entire appellant society including the
suit land against which valuable consideration has been
paid by the allottees / members. Therefore, even the
allottees / members are the necessary parties to the suit as
they have interest in the suit land.

Mr.Soparkar, learned senior advocate for the appellant
has relied upon the decision of the Hon'ble Apex Court in
the case of Shivali (Vejalpur) Co-Op.Hosg.
Society Ltd. v.
State of Gujarat
, reported in 2009 SCC OnLine Guj
11322.

7.2. Submission of the respondent on non-joinder of
parties:

Per contra, Mr.Mihir Joshi, learned senior advocate
for the respondent on the point of non-joinder of parties has
contended that the parties to the agreement to sell are
necessary parties, only parties to the contract can be joined,
no party claiming individual right can be joined as it would
change the nature of the suit.
In support of his submission,
Mr.Mihir Joshi has relied on the decision of the Hon'ble
Apex Court in the case of
Gurmit Singh Bhatia v. Kiran
Kant Robinson
, reported in (2020) 13 SCC 773]. Para 5 of
the said judgement reads thus:

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"5. We have heard the learned counsel for the
respective parties at length.

5.1. At the outset, it is required to be noted that the
original plaintiffs filed the suit against the original
owner - vendor - original defendant no.1 for specific
performance of the agreement to sell with respect to
suit property dated 3.5.2005. It is an admitted position
that so far as agreement to sell dated 3.5.2005 of
which the specific performance is sought, the appellant
is not a party to the said agreement to sell. It appears
that during the pendency of the aforesaid suit and
though there was an injunction against the original
owner - vendor restraining him from transferring and
alienating the suit property, the vendor executed the
sale deed in favour of the appellant by sale deed dated
10.07.2008. After a period of approximately four years,
the appellant filed an application before the learned
trial Court under
Order 1 Rule 10 of the CPC
for his
impleadment as a defendant. The appellant claimed
the right on the basis of the said sale deed as well as
the agreement to sell dated 31.3.2003 alleged to have
been executed by the original vendor. The said
application was opposed by the original plaintiffs. The
learned trial Court despite the opposition by the
original plaintiffs allowed the said application which
has been set aside by the High Court by the impugned
judgment and order. Thus, it was an application under

Order 1 Rule 10 of the CPC
by a third party to the
agreement to sell between the original plaintiffs and
original defendant no.1 (vendor) and the said
application for impleadment is/was opposed by the
original plaintiffs. Therefore, the short question which
is posed for consideration before this Court is, whether
the plaintiffs can be compelled to implead a person in
the suit for specific performance, against his wish and
more particularly with respect to a person against
whom no relief has been claimed by him?

5.2 An identical question came to be considered before
this Court in the case of Kasturi vs. Iyyamperumal,
reported in (2005) 6 SCC 733 and applying the
principle that the plaintiff is the dominus litis, in the
similar facts and circumstances of the case, this Court
observed and held that the question of jurisdiction of

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the court to invoke
Order 1 Rule 10 CPC
to add a party
who is not made a party in the suit by the plaintiff
shall not arise unless a party proposed to be added has
direct and legal interest in the controversy involved in
the suit. It is further observed and held by this Court
that two tests are to be satisfied for determining the
question who is a necessary party. The tests are - (1)
there must be a right to some relief against such party
in respect of the controversies involved in the
proceedings; (2) no effective decree can be passed in the
absence of such party. It is further observed and held
that in a suit for specific performance the first test can
be formulated is, to determine whether a party is a
necessary party there must be a right to the same relief
against the party claiming to be a necessary party,
relating to the same subject matter involved in the
proceedings for specific performance of contract to sell.

It is further observed and held by this Court that in a
suit for specific performance of the contract, a proper
party is a party whose presence is necessary to
adjudicate the controversy involved in the suit. It is
further observed and held that the parties claiming an
independent title and possession adverse to the title of
the vendor and not on the basis of the contract, are not
proper parties and if such party is impleaded in the
suit, the scope of the suit for specific performance shall
be enlarged to a suit for title and possession, which is
impermissible. It is further observed and held that a
third party or a stranger cannot be added in a suit for
specific performance, merely in order to find out who is
in possession of the contracted property or to avoid
multiplicity of the suits. It is further observed and held
by this Court that a third party or a stranger to a
contract cannot be added so as to convert a suit of one
character into a suit of different character.

5.3. In the case of Kasturi (supra) in paragraphs 15
and 16, this Court observed and held as under:

"15. As discussed hereinearlier, whether Respondents 1
and 4 to 11 were proper parties or not, the governing
principle for deciding the question would be that the
presence of Respondents 1 and 4 to 11 before the court
would be necessary to enable it effectually and
completely to adjudicate upon and settle all the

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questions involved in the suit. As noted hereinearlier,
in a suit for specific performance of a contract for sale,
the issue to be decided is the enforceability of the
contract entered into between the appellant and
Respondents 2 and 3 and whether contract was
executed by the appellant and Respondents 2 and 3 for
sale of the contracted property, whether the plaintiffs
were ready and willing to perform their part of the
contract and whether the appellant is entitled to a
decree for specific performance of a contract for sale
against Respondents 2 and 3. It is an admitted position
that Respondents 1 and 4 to 11 did not seek their
addition in the suit on the strength of the contract in
respect of which the suit for specific performance of
the contract for sale has been filed.

Admittedly, they based their claim on independent title
and possession of the contracted property. It is,
therefore, obvious as noted hereinearlier that in the
event, Respondents 1 and 4 to 11 are added or
impleaded in the suit, the scope of the suit for specific
performance of the contract for sale shall be enlarged
from the suit for specific performance to a suit for title
and possession which is not permissible in law.
In the
case of
Vijay Pratap v. Sambhu Saran Sinha
[(1996) 10
SCC 53] this Court had taken the same view which is
being taken by us in this judgment as discussed above.
This Court in that decision clearly held that to decide
the right, title and interest in the suit property of the
stranger to the contract is beyond the scope of the suit
for specific performance of the contract and the same
cannot be turned into a regular title suit. Therefore, in
our view, a third party or a stranger to the contract
cannot be added so as to convert a suit of one
character into a suit of different character. As
discussed above, in the event any decree is passed
against Respondents 2 and 3 and in favour of the
appellant for specific performance of the contract for
sale in respect of the contracted property, the decree
that would be passed in the said suit, obviously, cannot
bind Respondents 1 and 4 to 11. It may also be
observed that in the event, the appellant obtains a
decree for specific performance of the contracted
property against Respondents 2 and 3, then, the Court
shall direct execution of deed of sale in favour of the
appellant in the event Respondents 2 and 3 refusing to

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execute the deed of sale and to obtain possession of the
contracted property he has to put the decree in
execution. As noted hereinearlier, since Respondents 1
and 4 to 11 were not parties in the suit for specific
performance of a contract for sale of the contracted
property, a decree passed in such a suit shall not bind
them and
in that case
, Respondents 1 and 4 to 11
would be at liberty either to obstruct execution in
order to protect their possession by taking recourse to
the relevant provisions
of CPC
, if they are available to
them, or to file an independent suit for declaration of
title and possession against the appellant or
Respondent 3. On the other hand, if the decree is
passed in favour of the appellant and sale deed is
executed, the stranger to the contract being
Respondents 1 and 4 to 11 have to be sued for taking
possession if they are in possession of the decretal
property.

16. That apart, from a plain reading of the expression
used in sub-rule (2)
Order 1 Rule 10 CPC
"all the
questions involved in the suit" it is abundantly clear
that the legislature clearly meant that the
controversies raised as between the parties to the
litigation must be gone into only, that is to say,
controversies with regard to the right which is set up
and the relief claimed on one side and denied on the
other and not the controversies which may arise
between the plaintiff-appellant and the defendants
inter se or questions between the parties to the suit and
a third party. In our view, therefore, the court cannot
allow adjudication of collateral matters so as to
convert a suit for specific performance of contract for
sale into a complicated suit for title between the
plaintiff-appellant on one hand and Respondents 2 and
3 and Respondents 1 and 4 to 11 on the other. This
addition, if allowed, would lead to a complicated
litigation by which the trial and decision of serious
questions which are totally outside the scope of the
suit would have to be gone into. As the decree of a suit
for specific performance of the contract for sale, if
passed, cannot, at all, affect the right, title and
interest of Respondents 1 and 4 to 11 in respect of the
contracted property and in view of the detailed
discussion made hereinearlier, Respondents 1 and 4 to
11 would not, at all, be necessary to be added in the

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instant suit for specific performance of the contract for
sale."

That thereafter, after observing and holding as above,
this Court further observed that in view of the principle
that the plaintiff who has filed a suit for specific
performance of the contract to sell is the dominus litis,
he cannot be forced to add parties against whom, he
does not want to fight unless it is a compulsion of the
rule of law.

5.4. In the aforesaid decision in the case of Kasturi
(supra), it was contended on behalf of the third parties
that they are in possession of the suit property on the
basis of their independent title to the same and as the
plaintiff had also claimed the relief of possession in
the plaint and the issue with regard to possession is
common to the parties including the third parties, and
therefore, the same can be settled in the suit itself. It
was further submitted on behalf of the third parties
that to avoid the multiplicity of the suits, it would be
appropriate to join them as party defendants. This
Court did not accept the aforesaid submission by
observing that merely in order to find out who is in
possession of the contracted property, a third party or
a stranger to the contract cannot be added in a suit for
specific performance of the contract to sell because
they are not necessary parties as there was no
semblance of right to some relief against the party to
the contract. It is further observed and held that in a
suit for specific performance of the contract to sell the
lis between the vendor and the persons in whose favour
agreement to sell is executed shall only be gone into
and it is also not open to the Court to decide whether
any other parties have acquired any title and
possession of the contracted property.

5.5. It is further observed and held by this Court in
the aforesaid decision that if the plaintiff who has
filed a suit for specific performance of the contract to
sell, even after receiving the notice of claim of title
and possession by other persons (not parties to the
suit and even not parties to the agreement to sell for
which a decree for specific performance is sought)

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does not want to join them in the pending suit, it is
always done at the risk of the plaintiff because he
cannot be forced to join the third parties as party-
defendants in such suit. The aforesaid observations
are made by this Court considering the principle that
plaintiff is the dominus litis and cannot be forced to
add parties against whom he does not want to fight
unless there is a compulsion of the rule of law.

5.6. Therefore, considering the decision of this
Court in the case of Kasturi (supra), the appellant
cannot be impleaded as a defendant in the suit filed
by the original plaintiffs for specific performance of
the contract between the original plaintiffs and
original defendant no.1 and in a suit for specific
performance of the contract to which the appellant is
not a party and that too against the wish of the
plaintiffs. The plaintiffs cannot be forced to add party
against whom he does not want to fight. If he does so,
in that case, it will be at the risk of the plaintiffs."

Mr.Mihir Joshi, learned senior advocate for the
respondent has further submitted that if the original owners
are joined, nature of the suit will be converted into the suit
for enforcement of the ATS between the farmers and the
society and even otherwise, as per ATS, onus is on the
society to get the sale deeds executed from the farmers.

The appellant has stated that in the suit filed by the
appellant against the original owners of the land, it has
been stated that the appellant has right in the suit land by
virtue of ATS, power of attorney, development agreement
with the original owners and it has paid full consideration to
the original owners and they have transferred the
possession to the society and therefore, when the purchaser

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has right to compel the defendant society to procure the
concurrence and decree against the present appellant with a
direction to get the conveyance from the original owners and
execute in favour of the respondent can be passed.

Mr.Mihir Joshi, learned senior advocate for the
respondent on the point of non-joinder of allottees has
submitted that the so-called allottees are strangers to the
ATS and MOU and they are not proper and necessary. It is
submitted that there is no pleadings by the appellants -
defendants as to who were the allottees in the suit land
prior to 22/12/1960 and no documents of allotment of
society were produced and only list of allottees has been
produced on record which is a typed list prepared by the
society, which is false and has inherent contradictions and
is not supported by any evidence and the said list does not
provide any particulars of the allottees and shows old and
new plot numbers and as such, the allotment letters do not
create any right in the suit land.

It is also contended by Mr.Mihir Joshi, learned senior
advocate for the respondent that the society has filed Civil
Suit No.941 of 2011 against the allottees and the society
has stated that the allottees are provisional allottees and
not accepted as members by the society, as they have not
paid the land contribution and allottees are mere allottees
and not the members of the society and they are not
necessary parties and if the allottees are the members of the

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society, then they are not necessary parties. As the
members of the society have not individual right and they
are required to be represented through the society. If they
are nominal members/nominal allottee than under the ATS,
it is the obligation undertaken by the society to compensate
them and clear the title and sell the land to the plaintiff.

Mr.Mihir Joshi, learned senior advocate for the
respondent has relied upon the decision of Hon'ble Apex
Court in the case of
State of U.P. Vs. C.O.D. Chheoki
Employees Co-operative Housing Society Ltd. and
others
, reported in (1997) 3 SCC 681. Paragraph Nos.16,
17 and 18 of the said judgements are as under:-

"16. Thus, it is settled law that no citizen has
an fundamental right under
Article 19(1)(c)
to become a
member of a Co-operative Society. His right is governed
by the provisions of the statute. So, the right to become
or to continue being a member of the society is a
statutory right. On fulfilment of the qualifications
prescribed to become a member and for being a member
of the society and on admission, he becomes a member.
His being a member of the society is subject to the
operation of the Act, rules and bye-laws applicable
from time to time. A member of the Society has no
independent right qua the Society and it is the society
that is entitled to represent as the corporate aggregate.
No individual member is entitled to assail the
constitutionality of the provisions of the Act, rules and
the bye-laws as he has his right under the Act, rules
and bye-laws and is subject to its operation. The stream
cannot rise higher than the source.

17. So, the society having been formed is governed
by the provisions of the Act. The individual members do
not have any fundamental right to the management of
the Committee except in accordance with the provisions

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of the Act, rules and bye-laws. The management of the
Committee is regulated by
Section 29
of the Act. The
composition thereof is also regulated by the Act and
has to be in accordance with the Rules and the bye-
laws. The Rules referred to here in before have to be in
furtherance of and in conformity with the provisions
contained in
Section 130(2)(xii)
and (xii-A) and the Rules
providing for reservation in the election of the
committee or for nomination to the Management
Committee of the members belonging to the weaker
sections and women should be to effectuate socio-
economic and political justice assured by the Preamble,

Articles 38
and
of the Constitution.

18. Shri Raju Ramachandran, relying upon the
judgment of this Court in
Damyanti Naranga vs. The
Union of India & Ors.
[(1971) 1 SCC 678], has contended
that in view of the ration
laid down by
this Court, the
Government is devoid of power to make law unless any
of the restrictions as controlled by clause (4) of
Article
of the Constitution of India are infringed. The
Government has no power to enact a law incorporating
the reservation to the members of weaker sections and
women thereof. We find no force in the contention. It
could be seen that therein, the Government had enacted
the
Sahitya Sammelan Act
exercising the power under
Entry 63, List I of the Seventh Schedule to the
Constitution. This Court pointed out that the Act did
not envisage that the Samiti is of national importance.
Therefor, it was held that the Parliament had lacked
power to enact the law incorporating the society and
inducting outside members against the wishes of the
founder members of the Society registered under the

Societies Registration Act
. This Court also held that the
properties belonging to the original Society stood
vested in the Society incorporated under
Section 4
of
the Act without any compensation. Therefore, it was
violative of
Article 31
of the Constitution of India, as it
stood then. The ratio therein has no application to the
facts in this case. He then contended that "Other
Backward Classes" defined under the State Public
Services Reservation Act applicable to and covering the
public services, they are being inducted as members of
the society which are otherwise not eligible and,
therefore, the induction of them by amendment of Rules
made on 15.7.1994 is unconstitutional. In support

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thereof, he contends that though
Article 15(4)
of the Act
provides that it is subject to
Articles 15(2)
and
29(2)
of
the Constitution, it does not envisage that it is also
subject to
Article 19(1)(c)
of the Constitution. Therefore,
the reservation provided to the weaker sections is
unconstitutional. We find no force in the contention.
The object of
Article 15(4)
is to lift the prohibition of
general equality guaranteed in
Article 15(2)
and
29(2)

of the Constitution dealing with the right to admission
into an educational institution maintained by the State
or receiving aid from the State. Therefore, their object
is distinct and different from
Article 19(1)(c).
Though

Article 19(1)(c)
gives freedom to form association, it is
controlled by the provisions of the Act. As held by this
Court, once a society has been registered under the Act,
the management of the society through
Section 29
and
the Rules made thereunder, is regulated by duly elected
members. In the democratic set up, all eligible persons
are entitled to contest the election, as held, according
to the provisions of the Act and Rules. In the absence of
elected members belonging to the weaker sections and
women elected, nomination of them by the Government
is the alternative dispensation envisaged as one of the
policies of the Act. Therefore, the Court cannot
interfere with the policy and declare it is
unconstitutional violating
Article 19(1)(c)
of the
Constitution.

Mr.Mihir Joshi, learned senior advocate for the
respondent has also relied upon the decision of the Hon'ble
Apex Court in the case of
Daman Singh & Ors vs State Of
Punjab & Ors.
, reported in (1985) 2 SCC 670.

7.3 Finding on the point of non-joinder of the parties :

So far as the submission of the respective parties on
the point of non-joinder of the parties is concerned, here in
this case, considering the submissions of both the sides, the
rectal in the ATS clearly provides that the allottees are to be

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removed from the land. Thus, it is apparent that at the time
of ATS, allottees were in the suit land, which was in the
knowledge of the respondent - plaintiff.

It is admitted fact on record and it cannot be disputed
that the transfer or the enforcement of the ATS was based
upon the conveyance of the land from the original owners to
the appellant plaintiff. The owners was to convey the land
and those lands were to be handed over to the respondent.
It is also made out that the lands were allotted to other
persons who are third party or non-members, however,
whether they are legal members of the society or not, it is a
question apart but they were allottees on the land. It is also
admitted fact that the appellant - original defendant has
filed suit against the original owners of the land, which is
pending and it has not attained finality. Admittedly, the
MOU which is to be enforced also clarifies that 75% of the
land will be of the respondent and 25% shall belong to
Mr.Ashish Patel.

In the case of Mashkoor Hasan Khan (supra), in para
1, 2, & 3, it has been held and observed as follows:

"2. lt may be noted that the actual bidders or
the persons in whose favour the rights have
now been granted by the Zila Parishad were not
implemented as parties to the suit nor in
Parishad wean interim injunction made in the
suit. They are not impleaded in this appeal
either. In the counter affidavit filed on behalf
of the Zila Parishad it has been stated that

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written contracts had already been entered
into by the Zila Parishad for collection of
carcass, bones and hides etc. with third parties
who are not parties to the suit or to this
appeal.

3. It is thus obvious that in case any injunction
is granted it will adversely affect the interest
of third parties who are not present before this
Court. In these circumstances the interim
injunction was not in fact maintainable and it
was not necessary for the court below to go
into the merits of the application."

[Emphasis Supplied]

Similarly, in the case of
Sajli Kishku
(supra), it has
been observed as under:-

"...In the absence of a necessary party the suit
is not maintainable unless the defect is cured.

16. It is a settled principle of law that an order
of injunction like all interim orders is passed
only in aid of the final order that may be
passed in the suit. But where as here the suit
itself is not maintainable the court should
restrain itself from passing any interim order."

It is on record that the allottees / members whether
they are legal or illegal, is yet to be decided but prima facie,
there are allotments in the name of other persons.

The owners against whom the suit is filed are also not
joined. No doubt, it is an obligation on the society to get the
land conveyed in favour of the society by the original owner

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for which the suit is also filed, but if the appellant fails to
get the conveyance of the land from the original owners,
rights of the respondent cease to exist. On the contrary, if
the owners were joined, they could have come before the
trial court and have cleared the obligation of the appellant -
defendant. There appears to be some hinch between the
appellant and the original owners which would have given
rise to the cause of action to file the suit against the
original owners. As such the original owners unless and
until they do not convey the land, there is no possibility of
reconveyance of land to the respondent.

So far as contention of the respective parties with
respect to non-joinder of Mr.Ashish Patel is concerned, as
per the MOU Mr.Ashish Patel has 25% share in the land. As
stated above, the respondents' case is that there is no
novation and clause 7(d) is between Mr.Ashish Patel and the
respondent and not the appellant and the respondent and
hence there is no change in the ATS between the parties.
But as Mr.Ashish Patel has not signed individually, as share
of Mr.Ashish Patel to the extent of 25% in the MOU, cannot
be conveyed to the respondent without joining Mr.Ashish
Patel, as he is also an affected party to the suit. By virtue of
phrase "banne tarafwala", Mr.Ashish Patel becomes one of
the parties of the said phrase. Hence, the performance of
the MOU, which is sought by the respondent, cannot be
decided without having Mr.Ashish Patel as party.

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So far as the allotments are concerned, in 2006 itself,
the allottees were there to whom allotment letters have been
issued, however, it is an admitted fact that the allotment
dastavej to all the members are not executed. Though it is
contended by Mr.Mihir Joshi, learned counsel for the
respondent that the allottees are not the members of the
society and if they are members of the society, the society
will take care of their rights and interest. But this fact also
cannot be denied that a list of the allottees has been placed
on record by the society. Whether the allottees are legally or
illegally on the land is a question which cannot be decided
by this Court, but when the ATS says that allottees are to
be removed or the allotments are to be cancelled, it becomes
an act which affects the rights of the allottees, who are on
the land since long and they are waiting for getting their
allotment dastavaj. It also reveals that common amenities
have been provided on the land, brochure of the society is
also placed on record and so the allotttes who are members
or non-members of the land, they have right in the land in
the common amenities and hence they have undecided
rights in the suit land. If they are removed without any legal
action, it will be hardship to the allottees and they cannot
be removed without following process of law and admittedly

in that case
the allottees have to agitate their grievance in
the suit.

In the case of Shivali (Vejalpur) Co-Op.Hosg.
Society
Ltd.
(supra), in paragraph Nos. 9 & 10, it has been observed

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and held as under :-

"9 In my opinion when a housing society
issues the allotment letters in favour of its
members with reference to its respective
units/shares an interest in the same will be
said to have been created in favour of its
members. Even in the case of a tenant
copartnership society or a tenant
coownership society, where the land is
supposed to be owned by the society and
upon which houses are constructed by the
society for the benefit of its members or by
the members themselves, as the case may be
and when allotment letter is issued in favour
of an individual member, in such cases also,
interest in the immovable property to be
occupied is always created.

10. A letter of allotment is an an areement to
sell immovable ' property as the possession
of the property is transferred to the
purchaser before or at the time of or
subsequent to the execution letter of
allotment of the society is a transfer of
interest of the society to a third party who,
subsequently, becomes a member. In the case
of a housing society, the right of occupation
and enjoyment of the plot allotted to the
member is vested to him. Under the
provisions of the
Gujarat Co-operative
Societies Act
a society and its member/s are
independent of each other. Both are mutually
exclusive. A society can exist even in the
absence of its members and it can include an
y personas its members. A co-operative
society is formed in order to allow its
member/s to execute their requirements and
to avail the benefits jointly, which is not

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feasible or possible individually. Therefore
there is no substance in the contention
raised by the petitioners that a society and
its members are not independent of each
other.

[Emphasis Supplied]

So far as the contention raised by Mr.Mihir Joshi,
learned counsel for the respondent that the appellant
society has filed the suit against some of the allottees in
order to argue that the appellant does not recognize the
rights or interest of the allottees, it is made out from the
plaint itself that the appellant has reframed its obligation to
execute allotment dastavej in favour of the allottees, once
the remaining balance consideration is paid. Hence, the suit
which is filed by the society against the allottees also reveals
the fact that the allottees are on the land prior to filing of
the present suit and the society was keen to confirm its
obligation to execute dastavej on payment of remaining
balance consideration and so those allottees who are there
on the land, if removed without due process of law, it will be
based upon ATS and it will be hardship to the allottees and
who will be affected by the order of this Court and the
allottees will not be able to use their amenities accordingly
and so it will be affecting their rights in their absence.

Mr.Joshi, learned senior advocate has relied on the
decision in the case of
Gurmit Singh Bhatia
(supra),
wherein the vendee and the subsequent purchaser claimed

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rights on the basis of different agreements with the vendor.
As the agreements were different and also because the
subsequent purchaser was claiming independent title
adverse to the vendor, the subsequent purchaser was not
implemented at the risk of the vendee, hence the facts of the
case cited by the learned senior advocate for the respondent
are different, whereas in this case, the rights of the
respondent depends on the agreement that the appellant
has with the original owners and as stated above, if the
appellant's suit against the original owners fails, the alleged
right of the respondent will also ceased to exist and
in that
case
also the owners becomes necessary party and as
mentioned above, if they are brought as owners on record, it
would have been convenient for the respondent to get
conveyance in their favour through the appellant.

In the case of
C.O.D. Chheoki Employees'
Cooperative Socieety Limited and others
(supra), and in
the case of
Daman Singh
(supra) it is laid down that the
members of the society do not have any independent right
in the co-operative society or the appointment of the
chairman was being challenged and the Hon'ble Apex Court
observed that the members cannot challenge the Act or bye-
laws or the rules by which they exist and they do not have
any independent rights in the society.

Paragraph 11 of
Daman Singh
(Supra) states that members under the
relevant
Co-operative Societies Act
in the case, are also

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given the chance to be heard if they wish to be heard,
indicating that persons do not lose their individuality after
becoming a member.

8.1. Finding on readiness and willingness
u/s 16
of the
Specific Relief Act:

So far as the contentions of both the parties with
respect to the readiness and willingness
u/s 16
of the
Specific Relief Act is concerned, it is the issue wherein the
plaintiff and the respondent has to discharge their duties to
prove readiness and willingness to perform their part of the
contract by adducing cogent and convincing evidence
before the learned trial court and resultantly, if the plaintiff
is unable to prove readiness and willingness on his part,
there will be no order of specific performance of contract in
favour of the plaintiff. As such the contents of
section 16(1)

(c) pertains to the specific performance. Readiness and
willingness is a question of facts and hence, the said
question is kept open to be decided by the learned trial
court and this Court has not dealt with the same.

9. UNAMENDED SECTIONS 13 AND 14 OF THE
SPECIFIC RELIEF ACT :

9.1 Submission of the appellant on
Secs.13
and
of
Specific Relief Act:

Mr.Soparkar, learned senior advocate for the

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appellant, on the point of unamended
sections 13
and
of
the Specific Relief Act has submitted that the specific
performance of the ATS is not possible under
sections 13

and
of the Specific Relief Act.

It is submitted that there are three parties in this case
having their rights and interest in the suit land, namely,
the original owners, Mr.Ashish Patel and allottees /
members of the society. It is submitted that as per
section
13(1)(b)
of the Specific Relief Act neither of the three parties
are "bound to concur" or "bound to convey" at the request of
the appellant society and therefore ATS cannot be
performed under
section 13
of the Specific Relief Act.

Mr.Soparkar, learned senior advocate for the
appellant has further submitted that where compensation is
adequate relief, specific performance of the contract is not
enforceable and that under
section 41(h)
of the Specific
Relief Act, an injunction cannot be granted when
equally efficacious relief can certainly be obtained by
any other usual mode of proceedings.

Mr.Soparkar, learned senior advocate for the
appellant has further submitted that the respondent has
admitted in the plaint itself that the respondent is having
business of selling, purchasing and developing the land
related activities. It is also admitted in the plaint that even
in the past, the respondent had purchased the property
from Mr.Ashish Patel. Furthermore, in the suit itself, the
respondent has prayed that the sale deed of the suit land

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may be executed in favour of any one proposed by the
respondent, which indicates that the respondent is satisfied
with compensation and is not concerned with the suit land
for his own use.

Clause 7(d) also states that the suit land is to be
jointly sold by the appellant and the respondent to third
party. As such the agreement by way of MOU is an
agreement for developing the land and selling it to the third
party and therefore, injunction cannot be granted for such
an agreement in such a situation. If the suit land will have
to be "merchandise" or "stock-in-trade" of the respondent, in
which case, presumption will not be available to the
respondent and in such a case, the respondent can be
compensated in terms of money, as the respondent is
concerned with profit after selling the land. It is apparent,
that the compensation in form of money would suffice. The
respondent is concerned with profit and therefore,
presumption is also not applicable to the facts of the
present case and injunction ought not to have been granted.

Mr.Soparkar, learned senior advocate for the appellant
has placed reliance on the decision of the Hon'ble Apex
Court in the case of Hari Krishna Agarwala Vs. k.c. Gupta,
reported in 1948 SCC OnLine Allahabad 183.

Mr.Soparkar, learned senior advocate for the
appellant has placed reliance on the decision of the Hon'ble
Apex Court in the case of
Ramji vs. Rao Kishoresingh
,
reported in 1972 SCC Online Privy Council 40.

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Mr.Soparkar, learned senior advocate for the appellant
has further submitted that unamended
section 14(1)(a)
of
the Specific Relief Act stipulates that the contract which can
be adequately compensated through money in case of non-
performance, cannot be enforced.

Mr.Soparkar, learned senior advocate for the appellant
has placed reliance on the decision of the Hon'ble Apex
Court in the case of
Dave Ramshankar Jivatram vs. Bai
Kailasgauri
, reported in 1972 SCC OnLine (Gujarat) 61,
wherein it has been observed and held in para 7 as under:-

"7. .....Plaintiff No. 1 does not require the
suit house for her own residence and that is
the material fact Even before the date of the
institution of the suit she had entered into an
agreement of sale with original plaintiffs Nos 2
and 3 and executed a banakhat Exhibit 25
dated February 14, 1963 The agreement of sale
is consideration of Rs 11.999 and Rs 501 has
been given as an earnest money as stated in the
document it is stated in the plaintiff No 1 has
entered into an agreement of sale of the suit
property on 14-2- 1963 with plaintiffs Nos 2
and 3. In favour of plaintiff Nos 2 and 3 or in
the alternative in favour of plaintiff no 1 does
not require the suit property fir her own use of
occupation She only wants to reconvey the
property. Having regard to the peculiar facts of
the case the document Exhibit 2 7 is a contract
for the non - performance of which
compensation in money is an adequate relief in
such a case the contract cannot be specifically
enforced as provided in clauses (a) of sub-

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section (1) of
section 14
of the Actr Plaintiff No
1 who is the respondent herein has already
entered into n agreement of sale of the suit
property She does not require the properly she
does not require the property fir her own self
She could be adequately compensated in money
and in my opinion it would be an adequate
relief.

9....the plaintiff No 1 admittedly does not
require the suit property for her own self She
only wants to sell away the suit property to
plaintiff Nos 2 and 3 at a profit she has
entered into an agreement of sale Exhibit 25
Banakhat dated 14-2-1963. The sale is to be for
a price of Rs.11.999 thus what she wants is the
money value of the property of the property.
The defendant has purchased the property for
a sum of Rs 5,999 He is entitled to make
repairs and insure other expenses the extent of
Rs 751 as provided for in the agreement of sale
Exhibit 25 Banakhat dated 14-2-1963. The sale
is to be for a price of Rs 11,999. Thus what she
wants is the money value of the property. The
defendant has purchased the property for a
sum of Rs.5,999. He is entitled to make repairs
and incur other expenses, the extent of Rs 751,
as provided for in the agreement of
reconveyance. Ex. 27. the deference, therefore,
would be only of Rupees 5,249. The plaintiff No
1 would thus be adequately compensated in
money if I decree an award of Rs. 5,249 in her
favour, as compensation in money for the
admitted breach of the specific performance if
the agreement to reconvey evidenced by the
document. Exhibit 27. Mr. Shah on behalf of
the appellant declares that his client is ready
to pay this amount as compensations, I need
not therefore go into further detail on this
point as regards the quantum of damages.

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Accordingly although I have dismissed the
other contentions of Mr. Shah I must accept the
last one I hold that having regard to the
special facts of the case stated earlier this is
not a case in which specific performance of the
contract to transfer the immovable property
should be granted although there is a breach of
such contract In my opinion the breach would
be adequately relieved by compensation in
money, I accordingly set aside the decree of
specific performance passed by the learned 4
the Joint Civil Judge junior Division Baroda in
Regular Civil Suit No. 415 of 1963 and
confirmed by the learned Assistant Judge
Baroda in Regular Civil Appeal No 162 of 1965
and instead decree that the defendant
appellant do pay to the plaintiff No.1
(respondent herein) a sum of Rs.5,249 as
compensations in money for the breach of the
agreement. Exhibit 27 the defendant pay this
amount within ten weeks form today failing
which the amount will carry interest at 6 per
cent per annum from the date of the expiry of
the period of ten weeks the appeal is partly
allowed with no order as to costs in the
circumstances of the case.

Mr.Soparkar, learned senior advocate for the appellant
has placed reliance on the decision of the Hon'ble Apex
Court in the case of
Raman v. R. Natarajan
, reported in
2022 SCC OnLine SC 1212. Paragraph Nos. 16, 17 and 20
of the said Judgements are as under:-

"16. In any case, the High Court ought to
have seen that a Court cannot grant the relief
of specific performance against a person

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compelling him to enter into an agreement with
a third party and seek specific relief against
such a third party. In other words, the specific
performance of the agreement by the
appellants entering into an agreement with a
third party; and (ii) appellants being in a
position to compel such third party to perform
her obligations under such agreement.

17. The High Court ought to have seen that
the specific performance of the Agreement in
question comprised of two parts namely, (i) the
defendant entering into an agreement with his
brother's wife for the purchase of a land for
providing access to the land agreed to be sold
under the suit Agreement of Sale; and (ii) the
defendant thereafter executing a sale deed
conveying the property covered by the suit
Agreement of Sale.

20. Even the limited rights conferred by

Section 13(1)(b)
of the Specific Relief Act are
not available to the respondent, as there was
no legal right in the defendant to compel 3 rd
parties to convey their land to him for the
purpose of providing a pathway to the land
agreed to be sold to the respondent herein.

Section 13(1)(b)
reads as follows:

"13. Rights of purchaser or lessee against
person with no title or imperfect title.--(1)
Where a person contracts to sell or let certain
immovable property having no title or only an
imperfect title, the purchaser or lessee (subject
to the other provisions of this Chapter), has
the following rights namely:-

(a) xxx xxx xxx

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(b) where the concurrence of other persons is
necessary for validating the title, and they are
bound to concur at the request of the vendor or
lessor, the purchaser or lessee may compel
him to procure such concurrence, and when a
conveyance by other persons is necessary to
validate the title and they are bound to convey
at the request of the vendor or lessor, the
purchaser or lessee may compel him to procure
such conveyance;"

It is submitted that in view of the above, specific
performance of the ATS is not possible.

9.2 Submission of the respondent on unamended

sections 13
and
of the Specific Relief Act :

Per contra, Mr.Mihir Joshi, learned senior advocate for
the respondent, on the point of unamended sections of

sections 13
and
of the Specific Relief Act, has contended
that no individual concurrence of the allottees is required
over and above the concurrence of Mr.Ashish Patel is also
not required because he has 25% share in the land, only
after the society as well as land to the respondent and right
of Mr.Ashish Patel flows from the respondent and not from
the society. It is also submitted that the owners are bound
to sell the land to the society and concur and as per the
ATS, owners are bound to concur on demand of the society
as the society has paid the entire sale consideration. It is
submitted that the society who has filed the suit against the
allottees have prayed for injunction regarding non-transfer

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of the suit land in favour of third party. As such there is no
requirement for the allottees also to validate the title.

Mr.Mihir Joshi, learned senior advocate for the
respondent, on the point of
section 14(1)(a)
, has submitted
that
section 14(1)(a)
applies to general contract like contract
for movable properties and so far as immovable properties
are concerned,
section 10
specifically provides that unless
and until contradictory is proved, general presumption that
breach of contract of transfer of immovable property cannot
be adequately relief by compensation and this presumption
can be rebutted only if contrary is proved in the trial, decree
of possession of exception to the general rule and here in
this case, as the dispute is with respect to immovable
property and therefore, such a contention is not there. It is
also submitted that the party coming to the Court for
specific performance of the contract of sale of immovable
property need not prove anything unless the otherside is
removed the presumption. After evidence is led to remove
the presumption, the plaintiff is still in a position to prove
by other evidence in case that payment that payment of
money does nto compensate him adequately. It is also
submitted that
section 14(1)(d)
is not applicable to the facts
of the case and does not run into minute details and does
not involve personal qualification or volition of the parties.
Similarly, it does not involve continuous duties which Court
cannot supervise. The transaction is simple in nature for
which
section 14(1)(d)
is not applicable and is raised only to

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avoid the obligation.

Mr.Mihir Joshi, learned senior advocate for the
respondent has placed reliance on the decision of the
Hon'ble Supreme Court in the case of
M.L. Devender Singh
and others vs. Syed Khaja
, reported in (1973) 2 SCC 515,
wherein in para 21 it has been observed and held as
under :-

"21. The second assumption underlying
the contentions on behalf of the
Defendants-appellants is that, once the
presumption, contained in explanation to

Section 12
of the old Act, is removed, the,
bar contained in
Section 21
of the old Act,
against the specific enforcement of a
contract for which compensation in money
is an adequate relief, automatically
operates, over-looks that the condition for
the imposition of the bar is actual proof
that compensation in money is adequate on
the facts and circumstances of a particular
case before the Court. The effect of the
presumption is that the party coming to
Court for the specific performance of a
contract for sale of unmovable property
need not prove anything until the other
side has removed the presumption. After
evidence is led to remove the presumption,
the plaintiff may still be in a position to
prove, by other evidence in the case, that
payment of money does not compensate
him adequately."

9.3. Finding on the aspect of unamended
sections 13

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and 14 of the
Specific Relief Act
:

Hearing both the sides on the point of concurrence and
conveyance under
section 13
of the Specific Relief Act, it is
not only the person who can transfer his right / title is
relevant but also the person who can validate the title is
also important. Admittedly, the allottees / members who are
on the land have their valuable rights in the suit land
including the ownership over the plot and undivided share
in the basic amenities and services of the society, their
concurrence is required to validate the title to passed on to
the respondent. The allottees / members who are on the
suit land are not bound to concur at the request of the
appellant and hence
section 13(1)(b)
comes into picture
unless and until the allottees / members themselves come
forward to validate the title, ATS cannot be enforced and as
stated above, without due procedure of law, the allottees /
members cannot be removed from the land. Regarding
concurrence of Mr.Ashish Patel is concerned, as per MOU
which is subsequent even taken place after execution of the
ATS, Mr.Ashish Patel has become owner of the suit land to
the extent of 25% and in the opinion of this Court,
concurrence is required of Mr.Ashish Patel to validate the
appellant's title to be passed to the respondent and it
cannot be denied that Mr.Ashish Patel also is not bound to
concur at the request of the appellant.

Moreover, so far as 25% and 75% share, as per MOU is
concerned, which part of the land is of the respondent and

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which part is of MOU is also not clarified. The concurrence
to that effect for demarcation of the land is also required
and here also
sections 13
and
comes into picture.

As per submission of Mr.Mihir Joshi, learned senior
advocate for the appellant, it is open for the appellant to get
concurrence and in that manner indirectly it is a statement
regarding appellant's right to sue against all the person
from whom concurrence is required.

If the respondent is having ATS which is to be enforced
whether the Court can issue the decree compelling the
appellant to obtain concurrence from the persons who are
bound to concur as per the say of the respondent?. and if
that is so, the appellant will have to initiate litigation
against the original owners which is subject to their
personal volition of the appellant. In that sense,
section
14(d)
of the Specific Relief Act comes into picture, where the
Court is to issue a decree compelling the appellant to
pursue litigation, it would involve numerous details and
performance of the continuous which court cannot
supervise continuously. Assuch, it will be a chaos on record
compelling the appellant to get enforcement of the ATS of
the respondent by suing the owners, allottees and original
owners of the land which again cannot be specific
enforcement under
section 14(1)(d)
.

Considering the submissions of both the sides and as
stated above, three parties in total are affected in this case,

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namely original owners, Mr.Ashish Patel and the allottees
and as per
section 13(1)(b)
, as mentioned, bound to
concurrence cannot be said to be a ground for right to sue
against all the persons and create litigations and also as
stated above, it will cast obligation where the Court will not
be able to issue decree which will compel the appellant to
obtain concurrence without legal procedure of law and if
that is so, the court issue decree compelling the appellant to
pursue litigation it will involve numerous details and
purpose of a continuous duty, which will have to be
supervised and which can be said to be against
section 14

of the Specific Relief Act, as the Court will have to supervise
on one side conveyance of the deed from the allottees to the
appellant, owners' conveyance towards the appellant and
thereafter all the lands if is vested in the appellant it shall
be conveyed to the respondent. As such
section 14
also, as
stated above has a role to play.

10. CAN COMPENSATION BE AN ADQUATE REMEDY:

So far as the submission regarding compensation
being adequate remedy is concerned, the respondent
himself has admitted in the plaint that the respondent is in
the business of purchasing, selling and developing the land.
The MOU which is produced on record, clause 7(d) also
states that the land is to develop jointly by Mr.Ashish Patel
and the respondent and so MOU becomes impliedly a joint
development agreement between the parties. It has come on

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record that the respondent has not asked the land for his
own use but he is asking the land exclusively for selling
ahead, which cannot be denied. It is a business of
purchasing, selling and developing of the land of the
respondent.

This court is in complete agreement with the
proposition of law that under
section 10
of the Specific
Relief Act which shows that unless and until contrary is
proved, Court shall presume that the breach of a contract to
transfer immovable property cannot be adequate relief by
compensation in money. Here in this case, when the
respondent has admitted that they are dealing in
purchasing, selling and developing the land activities and
when they do not require the land for their own, but it is
only for the merchandise, this admission itself need not to
be proved. In these circumstances, if specific performance is
denied, apparently the respondent is entitled for
compensation which can be calculated in terms of money.
The admission of the respondent itself shows that the
respondent is only concerned with the profit after selling
the land and when the respondent is not using the land for
his own purpose and will be selling and developing the land
for profit, presumption cannot be made applicable.

So far as the decision in the case of
Syed Khaja

(supra) is concerned
,
in that case
the defendant relied on a
clause in the contract providing for liquidated damages in
case of breach for presumption. Here in this case,

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presumption shall not apply on account of admission of the
respondent. In the present proceedings regarding their
business of purchasing, selling and developing the land
activities and their intention is on record to sell and develop
the suit land and that also for profit.

Now a days it cannot be ruled out that in such
proceedings, when the land is agreed to be sold and
agreement is executed but is never concurred to be enforced
upon and thereafter, due to some dispute between the
parties, litigation takes place, the main dispute is hike in
the price of the land.

The respondent has invested money and the return of
money is sufficient which cannot be termed to be their
profit. This court do agree with the submission of
Mr.Soparkar, learned senior advocate for the appellant that
compensation can be adequately given to the respondent.

Based upon the case of
Dave Ramshankar
(supra),
when the facts indicated that the plaintiff No.1 did not
require suit land for her own use and she only wanted to
reconvey the property, compensation of money is adequate
relief. In such a case, contract cannot be specifically
enforced.

10. PRINCIPLES OF GRANT OF INJUNCTION :

So far as the principles of grant of injunction is
concerned, it is submitted by Mr.Soparkar, learned senior
advocate for the appellant that the impugned order is

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against the settled principles for grant of injunction. It is
submitted that in case the impugned order is not vacated,
the appellant will face criminal and civil proceedings filed by
the allottees / members of the appellant society, who have
been allotted plots way back in the year 1996, as many
allotment dastavej are yet to be executed in favour of the
allottees and therefore, irreparable loss or injury will be
caused to the appellant rather than the respondent. It is
also submitted that the allottees / members of the society
have also initiated proceedings against the appellants and
even the respondent has also initiated proceedings, which
ultimately resulted into the cancellaton of the sale deed for
survey nos.227 and 228. It is also submitted that the
respondent never agitated and neither sought to agitate the
injunction application for 9 years and therefore, the
respondent cannot contend now that irreparable injury will
cause to it and for that balance of convenience lies in
favourof the respondent. It is the case of the respondent
that application under
Order 7 Rule 11 of the Code of Civil
Procedure
was pending and hence there is no delay on the
part of the respondent. However, it cannot be denied that
the respondent was aware that the suit land was being
allotted to the allottees and subsequent allotment dastavej
were being executed, which reveals from the list which has
been produced on record by the appellant and the
respondent never requested the court to agitate the
injunction application. The conduct of the respondent

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shows that the respondent was never interested in
injunction but the respondent was interested with sharing
profit only.

It is also submitted by Mr.Soparkar that in the year
2021-2022, as per the say of the respondent, as the original
owners of some of the suit land, began executing sale deeds
in favour of the appellant, the respondent did not seek any
order for injunction since 2013. However, it was in the
knowledge of the respondent that survey nos.227 and 228
were in the ownership of the appellant but no urgency was
shown for those 2 survey numbers. Even as on today, the
respondent has sought injunction of 100% land though the
respondent is not in possession and ownership of 100%
land. So, the conduct of the respondent is of a nature which
shows that there is no irreparable injury to the respondent
for 9 years and hence there was also not balance of
convenience lies in favour of the respondent and as
submitted earlier, when the respondent is having business
of purchasing, selling and developing the land, they are
concerned with the profit and hence no irreparable injury
can be caused to them and they can be compensated
adequately, if the injunction is vacated.

Mr.Soparkar, learned senior advocate for the appellant
has placed reliance on the decision of the Hon'ble Apex
Court in the case of
Mandali Ranganna and others vs. T.
Ramachandra and others
, reported in (
2008) 11 SCC 1
and Kishorsinh Ratansinh Jadeja vs. Maruti Corpn
.

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(2009) 11 SCC 229, wherein the principles of considering
the conduct of the parties while exercising its discretionary
jurisdiction is discussed.

11.2. Submission of the respondent on the principle
of grant of injunction :

Per contra, Mr.Joshi, learned senior advocate for the
respondent has submitted that the suit was filed in the year
2013. It is the case of the respondent that the application
under
Order 7 Rule 11 of the CPC
was pending and it was
to be heard before the injunction application and
subsequently the suit was also transferred from the court of
Ahmedabad to the Court of Sanand. From 2013 to 2020, the
society had no other land and the defendant society got 8
survey numbers in the year 2020, 2021 and 2022 and at
this stage, the plaintiff immediately moved an application
for hearing of the injunction application and thereafter
thesuit was dismissed under
Order 7 Rule 11 of the CPC
,
which was challenged by the respondent before this Court
by way of First Appeal No.2320 of 2022 and thereafter the
application was heard and decided and thus, as such, there
is no delay on the part of the plaintiff.

Mr.Joshi, learned advocate for the respondent, on the
point of balance of convenience and irreparable injury, has
submitted that there are no allottees / members in the suit
land and it was the obligation of the society to compensate
them and remove them and the society cannot be permitted

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to avoid obligation which is accepted. It is also submitted
that the society has not executed convenience in favour of
the allottees from 1996 to 2022 for their plots. The allottees
have also not preferred any civil or criminal proceedings
from the year 1996 to 2022, which shows that there are no
allotteees in the society and so the balance of convenience
and irreparable injury are also in favour of the appellant.

Mr.Mihir Joshi, learned senior advocate for the
respondent has relied on the case of Maharwal Khewaji
Trust (regd) vs. Baldev Dass, reported in (2004) 8 SCC

488. Para 10 of
the said decision
is reproduced as under :-

"10. Be that as it may, Mr. Sachhar is right
in contending that unless and untill 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. In the instant case no such case of
irreparable loss is made out except contending
that the legal proceedings are likely to take a
long time, therefore, the respondent should be
permitted to put the scheduled property to
better use. We do not think in the facts and
circumstances of this case, the lower appellate
court and the High Court were justified in
permitting the respondent to change the nature
of property by putting up construction as also
by permitting the alienation of the property,
whatever may be the condition on which the
same is done. In the event of the appellant's

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claim being found baseless ultimately, it is
always open to the respondent to claim
damages or, in an appropriate case, the court
may itself award damages for the loss suffered,
if any, in this regard. Since the facts of this
case do not make out any extraordinary ground
for permitting the respondent to put up
construction and alienate the same, we think
both the courts below, namely, the lower
appellate court and the High Court erred in
making the impugned orders. The said orders
are set aside and the order of the trial court is
restored."

11.3. Finding on the principle of grant of
injunction, prima facie case, balance of convenience and
irreparable loss and conduct of the respondent :

Upon hearing the submissions of both the sides on
principle of grant of injunction, prima facie case, balance of
convenience and irreparable loss and conduct of the
respondent, here in this case, it cannot be disputed that
the allottes were allotted plots from the year 1996, whether
they are legally members of the society or illegally, is a
question which cannot be decided at this stage, however, it
cannot be denied that the government record i.e. report of
the society conveys that if the submission of the respondent
is that there were 24 members of the society and four on the
suit land, then also, the allottees are there, who are
members. Moreover, as per the say of the appellant, till the
suit was filed, 69 registered dastavej have been executed in

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favour of the appellant, out of 69 allottees, 54 allotment
dastavejs are of the suit land and after the suit was filed till
2022, 51 allotment dastavej have been executed, out of
which 35 pertains to the suit land. It is also submitted that
on the suit land bungalows have been constructed and
many bungalows are under construction and even a temple
is also under construction in survey no.218. No doubt, the
facts which are narrated in the submissions by the learned
advocate for the appellant but no documents are placed on
record by way of evidence and the same can be proved by
the appellant in the trial, but baseline cannot be denied
that the allottees were there on the land. It can also not be
denied that they have been given rights of using common
amenities and other parcels of land. Even for the sake of
arguments, if it is believed that only 24 members were there
in the society as per the record and only 4 are there in the
suit land, but it cannot be denied that the land surrounding
the suit land are parcel of the entire suit land and the
members who ever may be in the suit land or other land are
entitled for the enjoyment of the amenities which cannot be
denied. It also cannot be denied that the third party rights
exists on the suit land, as recorded by the learned trial
court in the impugned order. It is also concluded in the
impugned order that the interest of third parties have been
created in the suit land. It is also observed by the learned
trial court in the impugned order that the appellant has
not acted bonafide with the plaintiff and the allottees of the

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land. If that is so, then it becomes clear that there are
allottees on the land and the injunction will create a
situation wherein the appellant will have to face civil and
criminal litigation from the allottees. As such the
contentions raised by the learned advocate for the appellant
that here is construction on the land by the allottees and as
per the submission of he learned advocate for the
respondent that there are 24 members in the land and 4
members are there in the suit land, then also if any action
is taken against the legal allottees, it will be a situation for
the appellant for facing civil and criminal litigation from the
allottees which cannot be denied, as it is an admitted fact
that in the year 2010 some of the original allottees had
initiated legal proceedings against the appellant and the
respondent for survey nos.227 and 228 and thereafter,
partners of the respondent firm in whose favour the land
was transferred, decided to cancel sale deed for survey
nos.227 and 228, considering this aspect also though the
conveyance for survey nos.227 and 228 were executed in
favour of the respondent when the respondent was
compelled to cancel those sale deeds at the instance of the
allottees, it had become a case for agitating dispute by way
of suit by the respondent. It is also not in dispute that one
of the partners of the respondent firm signed as a witness in
allotment dastavaj for plot Nos.15 and 17 which were part
of extended Radhe Acres Scheme and in the list, serial
number was mentioned which included the suit land and

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allotment dastavej also stated that allottee members owned
common rights and amenities provided by the appellant
which has stated in the suit land.

Over and above, it is required to be noted that in First
Appeal No.2320 of 2022 vide order dated 6/10/2022, the
Division Bench of this Court while allowing the appeal of the
respondent and reviving the suit, has observed that so far
as Annexure-B (from page 134 to 141) is concerned,
those are the original allottees. Any transfer in the
interregnum by them shall be counted separately. As
there is serious dispute in relation to the list 142 to

145. It is volunteered by the learned advocate on
instruction that the respondent shall not deal with the
said list for the purpose of transfer of otherwise. It
becomes clear that the Division Bench of this Court has
also recognized that there are original allottees of the suit
land who have rights. An arrangement was also proposed
allowing the appellant to transfer the suit land by
maintaining the accounts. Even the Division Bench has
also taken into considered the position of allottees and their
allotments. As such, if the status-quo is continued, it
would result into multiplicity of litigation and which will
result into irreparable injury to the appellant rather than
the respondent in whose knowledge, the fact of allotment
was there and who has remained silent.

Considering overall facts of the case which has not

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been considered by the learned trial court, it appears that if
the injunction is continued, the allottees have paid their
consideration towards their land and allotment dastavej is
already executed, which becomes a irreversible situation for
the appellant for cancelling the allotments by compensating
the rights and taking back the possession without any due
process of law. At the same time, the appellant will have to
face litigation to that effect against one person i.e.
respondent. So considering the balance of convenience and
irreparable injury, this Court is of the opinion that it
coveys more in favour of the appellant rather than
respondent, who has a business of selling, purchasing and
developing the land and has pursue the litigation for profit
and who can be adequately compensated in terms of
money. At the same time, conduct of the respondent stated
hereinabove, also tilts the balance of convenience and
irreparable injury in favour of the appellant who in the
knowledge of the respondent at the time of executing ATS
had allotted some plots to the allottees and it cannot be
denied that during the pendency of the suit and till hearing
of the application, plots were not allotted and till then for 9
years when the respondent has remained silent in agitating
the injunction application, it appears from the conduct of
the respondent that the respondent was concerned about
agitating the litigation wherein even as per his own say, has
invested around Rs.11,49,00,000/-, however, the
respondent waited patiently for 9 years and as submitted by

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the learned advocate for the appellant, there are
constructions which are carried out in the suit land during
these years, which is though not on the record, but cannot
be disbelieved as there is already a list of allottees on record
and so after flowing of much water, if the injunction is
granted, it will affect the rights of those persons and it
would cause irreparable injury to the appellant and the
appellant will have to face a lot of hardship. At the same
time, balance of convenience is also in favour of the
appellant rather than the respondent.

As held in the case of
Mandali Ranganna
(supra),
Court must also take into consideration the conduct of the
parties while exercising its discretionary jurisdiction while
considering an application for grant of injunction, the court
will not only take into consideration the basic elements in
relation thereto viz. existence of a prima facie case, balance
of convenience and irreparable injury. In
the said decision
,
it is also further held that grant of injunction is an equitable
relief and a person who had kept quite for a long time and
allowed another to deal with the properties exclusively,
ordinarily would not be entitled to an order of injunction.

Relevant paragraph Nos.21, 22 and 26 of the decision
in the case of
Mandali Ranganna
(supra) reads thus:

"21. While considering an application for grant
of injunction, the court will not only take into

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consideration the basic elements in relation
thereto, viz., existence of a prima facie case,
balance of convenience and irreparable injury,
it must also take into consideration the
conduct of the parties.

22. Grant of injunction is an equitable relief.
A person who had kept quiet for a long time
and allowed another to deal with the
properties exclusively, ordinarily would not be
entitled to an order of injunction. The court
will not interfere only because the property is a
very valuable one.....

26. Rightly or wrongly constructions have
come up. They cannot be directed to be
demolished at least at this stage. Respondent
7 is said to have spent three crores of rupees.
If that be so, in our opinion, it would not be
proper to stop further construction."

In the case of
Ramji v. Rao Kishoresingh
, reported in
1929 SCC OnLine PC 40, the Hon'ble Court has observed
and held as follows:

"It is necessary to refer to two other
findings of the learned District Judge -

namely : (1) that damages would have been an
adequate relief to the plaintiff, and (2) that
such damages should be Rs.20,000.

In dealing with this question, learned
judge said as follows:

"No special damages have been proved
by the plaintiff. He simply invested money and
a return of money should normally be

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sufficient. It is not shown that he had any
pressing need for land. On the contrary, from
the very nature of the contract, it is evident
that there was no hurry at all, and that not
only might plaintiff fail to get the land but in
any case, he could not expect to get it for
several years. Indeed, the only reason for
insisting upon specific performance is that the
value of the village now is probably more than
the money advanced plus reasonable interest.
Plaintiff can certainly say that he took a risk
and that he should be compensated for such
risk. But compensation could be given in
money. This ground of appeal must fail."

In the case of Maharwal Khewaji Trust (regd.)
(supra), relied upon by the learned senior advocate for the
respondent, it is held that unless and until a case of
irreparable loss or damage is made out by a party to the
suit, court should not permit a change of the said status-
quo which may lead to loss or damage, if caused to the
party who may ultimately succeed and may further lead to
multiplicity of proceedings. In any event, it is open to the
either party to claim damages if ultimately the case of the
other party is found baseless and Court may award
damages for the loss suffered, if any.

Considering the aforesaid observations, when a case
of irreparable injury is made out, status-quo can be
effected, is the principle laid down. In the present case,

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when the respondent is agitating the suit or the injunction
application for 9 years, irreparable injury or balance of
convenience does not lie in favour of the respondent when
there are alienation and allotment in the land prior to filing
of the suit and after filing of the suit which will affect the
rights of the allottees as well as will encourage multiplicity
of litigation against the appellant by the allottees. So far as
prima facie case, balance of convenience and irreparable
loss are concerned, in the opinion of this Court, it tilts in
favour of the appellant rather than the respondent.

Considering the basic principle of law as
laid down in

the case of
Wander Ltd. And another vs. Antox India P.
Ltd.
, reported in (1990) Suppl. SCC 727, more particularly
para 14, as relied upon by Mr.Mihir Joshi, the learned
advocate for the respondent, appellate court would
normally not be justified in interfering with the exercise of
discretion under appeal solely on the ground that it had
considered the matter at the trial stage, it would have come
to a contrary conclusion, if the discretion has been
exercised by the trial court in a reasonable and in a judicial
manner, the fact that appellate court would have taken a
different view may not justify the interference. This court is
in complete agreement with this principle of law. But it is
open for every court to interfere with the impugned order if
the findings are found to be non-judicial or perverse, which
cannot be denied. Here in this case, considering the

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impugned order, the learned trial court has not considered
the facts of the dispute between the parties and therefore,
this court has re-examined the facts of the case. The
learned trial court has not considered the fact that the
injunction ought to have granted when all the three criteria
are found in favour of the plaintiff namely prima facie case,
balance of convenience and irreparable loss, which cannot
be compensated in terms of money. At the same time, the
learned trial court ought to have come to the conclusion
that granting injunction based on the principle that equity
helps the person who does equity. Here in this case, the
learned trial court has failed to take into consideration the
fact that even the ATS is there and there was no need for
MOU to be executed. The fact that the ATS was executed in
the year 2006 and though conditions mentioned in the ATS
and MOU were not fulfilled, how the cause of action arose in
the year 2013. The learned trial court also failed to
considered the conduct of the respondent though written
submissions were submitted. The finding that after filing of
the suit new allotments have been given, no evidence to that
effect was brought on record by the respondent and if there
was finding that there exists right of third parties in the
suit land, the court should have vigilant enough to opine
clearly upon the balance of convenience and irreparable loss
when there are allottees or third parties rights are existing
in the suit land, they will be affected by the order of
injunction which in enjoying their properties along with

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common amenities. At the same time, it cannot be ruled
out that if the injunction is operated, it will cause hardship
to the appellant herein and the appellant will face hardship
and litigation from the allottees and the same would result
into multiplicity of proceedings. The trial court erred that
the respondent - plaintiff has prima facie case on the basis
of ATS only and as the appellant has sought injunction
against the allottees / members in the suit filed by the
appellants against the allottees and the respondent is
seeking injunction, court has not taken into consideration
the fact that the appellant has reaffirmed the obligation
towards the allottees members and when the allottees /
members pay balance of consideration to the appellant,
allotment dastavej will be executed in their favour and
restrain order would cause hardship to the appellant herein
in not conveying the allotment dastavej, it will result into
multiplicity of proceedings to be faced by the appellant
herein and same would hardship to the appellant herein.
Even for the sake of argument, if the prima facie
observations of the learned trial court is believed that the
respondent is having a prima facie case, but the trial court
has erred in erroneous observation regarding the
respondent having irreparable loss and balance of
convenience in favour of the respondent. Based upon the
findings in the impugned order, the learned trial court has
granted injunction over the entire suit land wherein MOU
which is to be enforced as a recital to the fact that 75% of

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the land will be of the respondent and 25% would be of
Mr.Ashish Patel. It is also on record that the legal
proceedings initiated against the appellant wherein deeds
for survey nos.227 and 228 were executed and the trial
court's own finding that there exists rights of the members,
the finding that no irreparable injury to the appellant and
balance of convenience is not in favour of the appellant
herein, is erroneous.

In the entirety, this Court is of the opinion that the
entire facts of the case reveals that it becomes an
irreversible situation for the appellant to reverse and to
cancel the allotment of the members by compensating the
rights and take back possession of the plots. In fact, it will
be a irreparable injury to the members / allottees and rights
which are not being brought on record by the respondent,
who admitted them to be brought on record in the rejoinder
and this fact also cannot be denied that the allottees are
more in number and who are bonafide purchasers of the
land, rightly or wrongly which is yet to be decided and they
will initiate litigation against the appellant herein and the
appellant will face hardship. Whereas, on the other hand,
the respondents, who are concerned with their business of
purchasing, selling and developing the land activities, can
be adequately compensated in terms of money. As such, all
the three principles of injunction are not proved. In entirety
prima facie case does not help the plaintiff to get the order
of injunction but at the same time, the plaintiff should also

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show balance of convenience and irreparable loss is in his
favour and unless and until all the three ingredients
namely prima facie case, balance of convenience and
irreparable loss, are tilted in favour of the plaintiff, the
Court should be slow in granting injunction. Here also,
prima facie case of the plaintiff depends upon the agreement
to sell and MOU and both the documents are contradictory
and are disputed. At the same time, as stated hereinabove,
balance of convenience and irreparable loss is in favour of
the defendant rather than the plaintiff. Under the
circumstances, the impugned order is not just, legal and the
findings are not on the basis of the facts and evidence on
record and hence the impugned order cannot sustain in the
eye of law.

12. In the result, present Appeal From Order is allowed.
The impugned injunction order passed by the learned
Principal Senior Civil Judge, Sanand below Ex.5 in Special
Civil Suit No.407 of 2017 (Old Special Civil Suit No.272 of
2013) dated 30/11/2022 is hereby quashed and set aside.

Considering the nature of the dispute between the
parties, the learned trial court is hereby directed to expedite
the hearing of the suit and decide and dispose of the suit, in
accordance with law, subject to result of the SLP(C) No.
20976 of 2022, pending before Hon'ble the Apex Court,
within a period of four months from the date of receipt of
this order.

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C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023

Parties are directed to co-operate the learned trial
court in early disposal of the suit, as aforesaid
No costs.

In view of disposal of the main Appeal From Order,
Civil Application No.1 of 2022 and Civil Application No.1 of
2023, do not survive and they stand disposed of
accordingly.

In the facts and circumstances of the case, there shall
be no order as to costs.

Sd/-

(RAJENDRA M. SAREEN,J)

After pronouncement of the judgement and order, the
Mr.Jigar Raval, learned advocate for the respondent submits
that so as to approach the learned Apex Court, the execution,
operation and implementation of the present judgement and
order may be stayed for a period of eight weeks.

Mr.Raju, learned advocate appearing for the appellant
objected the request of stay of the order made by the learned
advocate for the respondent. He has submitted that the
appellant has faced a great hardship and inconvenience till today
and if the order is stayed, the appellant will face more hardship.

Here in this case, right from the order passed below Exh.5,
the status quo is directed to be maintained by the trial court
which is continued till today. Therefore, to enable the respondent
to challenge the present judgement and order before the Hon'ble
Apex Court, the execution, operation and implementation of the
above impugned judgement and order pronounced today is
hereby stayed for a period of six weeks from today.

Sd/-

(RAJENDRA M. SAREEN,J)
R.H.PARMAR

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