In this Appeal from Order filed under Order 43 Rule 1(r) of the Code of Civil Procedure ('the Code' for short), appellant/plaintiff seeks to challenge the order dated July 31, 2001 recorded below application exhibit-5 in Special Civil Suit No. 28 of 2001 by the learned 4th Joint Civil Judge (SD), Surat by which application exhibit-5 filed by the appellant/plaintiff against the respondent/defendant restraining him from getting executed the registered sale deed in his name, parting with the possession to any third party, create any interest of the third party of the shop mentioned in para 1 of the application ('suit shop' for short) and not to restrain the appellant from entering into the suit shop till the disposal of the suit, came to be rejected.
2.The suit in question is filed by the appellant for permanent injunction against the respondent restraining him from getting executed the registered sale deed in his own name, parting with the possession in favour of the third party and to create interest of the third party in the suit shop. Along with the suit, application exhibit-5 is also filed wherein the ad-interim injunction is prayed for, during the pendency of the suit.
3.The respondent, on having filed appearance, resisted the suit as well as the application exhibit by filing written statement as well as written objection. The respondent, inter alia contended that the appellant has suppressed the material facts and, therefore, not come with the clean hand. It is further contended that fathers of the appellant and the respondent were doing business of building materials etc. at Baranpuri Bhagal in the Surat City in partnership in the name of Gujarat Siramic Centre and thereafter, fathers of the appellant and the respondent have created four more partnership firms. All the partnership firms were dissolved and as per the settlement, the suit shop had come to the share of the respondent's father and as per the condition of settlement the possession of the suit shop was decided to be given to the respondent as a sole owner, therefore Sainath Corporation gave possession of the suit shop in the year 1998 and he was made owner of the said shop. It is further contended that as per the settlement amongst the five partnership firms that is Gujarat Agency, Shah Sales Agency and Shantinath Traders had come to the share of the respondent and their family members and remaining firms came to the share of appellant and their family members, therefore, from April 1, 1998 respondent is running the business of sanitary ware, tiles and building materisla etc. in the suit shop and, therefore, the appellant has no right title to enter into the suit shop, therfore, suit of the appellant is liable to be dismissed and it is prayed that the application exhibit-5 be dismissed with cost as there is no primafacie case in favour of the appellant.
4.The learned Judge, having heard the learned advocates appearing the parties and on analysis, appreciation and evaluation of the evidence, came to the conclusion that by virtue of the settlement, suit shop have come to the share of the respondent and the respondent is in possession of the suit shop till then and, therefore, there is no primacies case in favour of the appellant and obviously balance of convenience also does not tilt in his favour and resultantly, the learned Judge has dismissed the application exhibit-5 which has given rise to the present Appeal from Order.
5.I have heard Mr. Mukund Desai, learned advocate for the appellant and Ms. K.J.Brahmbhatt, learned advocate for the respondent who appeared on caveat. I have perused the averments made in the memo of the appeal, grounds set out therein and the impugned order which is the subject matter of the present Appeal from Order.
6.On the facts and in the circumstances emerging from the record of the case, it is not controverted by the appellant by filing rejoinder before the Trial Court that the father of the appellant and the respondent were not doing the business in a partnership firm and by virtue of the settlement at the time of dissolution of the firm, the suit shop had not come to the share of respondent since 1998 and since then respondent is not in possession of the said suit shop. Ms K.J.Brahmbhatt who appeared on caveat has submitted that on October 17, 2001 the sale deed is also executed in favour of the respondent by Sainath Corporation and in the said sale deed joined Rajhans Developer as a confirming party.
7.In view of the aforesaid state of affairs, I am of the opinion that the learned Judge has very rightly held that there is no primacies case in favour of the appellant and balance of convenience also does not tilt in his favour. I am fully agreed with the said finding of the learned Judge in this regard.
8.Seen in the above context, I do not find any valid reason or justifiable ground to interfere with the impugned order, hence Appeal from Order deserves to be dismissed at its inception.
9.For the foregoing reasons Appeal from Order fails and accordingly it is dismissed at the threshold with no order as to costs.
10.Since the Appeal from Order is dismissed, Civil Application No. 13228 of 2001 which is filed for stay of the impugned order does not assume any survival value, hence it is also dismissed with no order as to costs.
(A.M.Kapadia, J) Jayanti*