1. This Appeal From Order under Order XLIII Rule 1(r) of Code of Civil Procedure has been filed by the appellant- original plaintiff challenging the order dated 29-4-2011 passed below application Ex.5 in Special Civil Suit No.20 of 2007 by the learned Principal Senior Civil Judge, Ahmedabad(Rural) at Mirzapur, whereby order of status quo granted on 22-1-2007 was vacated.
2. Facts in short as arising from the present Appeal From Order are that an agreement to sell was executed by the appellant and respondent Nos.12 to 14 on 5-3-2002 for purchase of land in question from respondent Nos.1 to 11 for a consideration of Rs.20,00,000/- out of which, Rs.16,00,000/- were already paid by them. Possession Agreement handing over possession of the suit to the appellant and respondent Nos.12 to 14 was also executed by the respondent Nos.1 to 11. Sale deed was to be executed within 18 months after the respondent Nos.1 to 11 clear all pending litigations and after getting NA permission. However, till 2007, since neither the respondent Nos.1 to 11 nor by the respondent Nos.12 to 14 have any steps to execution of sale deed, the appellant smelt some foul play and found that his 1/4th share of the suit land was taken by the respondents by joining hands. Hence, a suit being Special Civil Suit No.20 of 2007 was filed by the appellant in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) for specific performance of contract and also for permanent injunction together with an application Ex.5 for interim injunction. Though an order of status quo qua ownership and possession of the suit property was passed on 22-1-2007, same was vacated by the trial court by the impugned order. Hence, the present Appeal From Order.
3. Heard learned advocate, Mr.D.K.Puj for the appellant and learned advocates, Mr.Jaykar B.Patel for the respondent No.1, Mr.Y.B.Pandit for respondent No.2, Mr.Jigar P.Raval for respondent No.3, Mr.Viral.K.Shah for respondent Nos.13/1 to 13/3 and Mr.P.R.Nanavati for respondent Nos.14 to 16.
4. Learned advocate, Mr.Puj for the appellant-original plaintiff submitted that the impugned order is against the materials on record. He further submitted that an error of law has been committed by the learned Judge in passing the impugned order. He further submitted that trial court did not rely on the Agreement to Sell as it was unregistered. According to him, the documents at Mark 4/3 and 4/4 were signed by the defendant Nos.1 to 11 with their thump impressions and same were duly notarized. He further submitted that the respondent No.13 joined hands with respondent Nos.1 to 11 to frustrate the claim of the appellant. He further submitted that although the fact of receiving the amount has been admitted by the respondent Nos.1 to 11 and although the respondent Nos.12 to 14 neither appeared in person nor filed reply, trial court committed a grave error in holding that plaintiff has no prima facie case nor balance of convenience in their favour. It has also committed an error in holding that there was no evidence to show payment of Rs.16,00,000/- on different dates. No reason has been assigned by the trial court in passing the impugned order. In this connection, he has relied on the decisions of a learned Single Judge of this Court reported in 1992(1) G.L.H. Page 60 in case of Vastabhai Madhubhai Machhi Vs. Tarachand Vastabhai Machhi and others and in 2001(3) G.L.H. (U.J.) 2 in the case of Ashrafkhan Azadkhan Pathan Vs. Mariambibi Kadri.
5. Learned advocate, Mr.Viral K.Shah, for the respondent Nos.13/1 to 13/3 submitted that if the documents namely, Agreement to Sell dated 5-3-2002, Possession Agreement and General Power of Attorney are verified, it would go to show that they are bogus documents as would be evident from the stamp number, date and the purchaser of the stamps. He further submitted that though ex-parte injunction was granted as early as on 22-1-2007, it remained unserved for about three years. He further submitted that the appellant has not come before the Court with clean hands. He further submitted that although the Agreement to Sell on which the appellant is relying was executed in favour of four persons including the appellant, three persons are not supporting the case of the appellant. He further submitted that the respondents are relying on an Agreement to Sell dated 2- 11-1994 executed by the respondent Nos.1 to 11 in favour of respondent No.13 and three others whereby the suit premises was agreed to be sold for Rs.28,35,000/- of which, Rs.14,17,710/- were paid and Rs.14,17,290/- are still outstanding and in respect of which, Special Civil Suit No.195 of 2008 filed by the present respondents wherein injunction was granted is still pending for final disposal though it was expedited by the High Court vide order dated 23-2-2012 passed in Appeal From Order No.184 of 2009 filed by the present respondent Nos.1 to 13. According to him, injunction in the suit filed by the respondents was granted after hearing the original land owner and it was not interfered with by the High Court and hence, it is requested that the present Appeal From Order does not merit any consideration and may be dismissed. He ultimately submitted that the respondents have no objection if both these suits are ordered to be heard together.
6. Learned advocates for the other respondents have adopted the submissions made by learned advocate, Mr.Viral K.Shah.
7. This Court has gone through the impugned order passed by the trial court and has considered the rival submissions made on behalf of the parties. This Court has also gone through the decisions relied on by the learned advocate for the appellant.
8. It appears from the submissions made on behalf of the parties that in respect of the present suit land, another Special Civil Suit No.195 of 2008 was filed by the present respondents for non-execution of Agreement to Sell executed on 2-11-1994 by the respondent Nos.1 to 11 in favour of respondent No.13 and three others whereby the suit premises was agreed to be sold for Rs.28,35,000/- of which, Rs.14,17,710/- were paid and Rs.14,17,290/- are still outstanding. It also appears that in the said suit, ad-interim injunction was granted in favour of the present respondents and same were confirmed till final disposal of the suit. When the present respondent Nos.1 to 13 filed Appeal From Order No.184 of 2009, said order passed by the trial court was not disturbed, however, suit was ordered to be expedited and it is still pending. As far as genuineness of documents namely, Agreement to Sell dated 5-3-2002, Possession Agreement and General Power of Attorney is concerned, this Court would not opine anything about the same at this stage as it may prejudice the rights of the parties at the time of final hearing of the suit. It is pertinent to note that although ex-parte injunction was granted in favour of the appellant by the trial court as early as on 22-1- 2007, same was not served upon the respondents for nearly three years and for which, no satisfactory explanation is forthcoming on the part of the appellant. In view of the above, this Court is of the opinion that the trial court has rightly vacated the status quo granted on 22-1-2007 by the impugned order. Since the said order is just, legal and proper, same is not being interfered with in this Appeal From Order. Hence, this Appeal From Order is required to be rejected. As far as the decisions relied on by the learned advocate for the appellant is concerned, facts of that cases are different from the facts on hand and hence, would not be applicable to the present case.
9. This Appeal From Order is rejected. In view of the order passed in Appeal From Order, no order in Civil Application No.6084 of 2011.
10. Learned Principal District Judge, Ahmedabad (Rural) is hereby directed to place Special Civil Suit No.20 of 2007 along with Special Civil Suit No.195 of 2008 before one Court and give necessary direction to decide both the suits together. This Court has already given direction by order dated 23.02.2012 in Appeal from Order No.184 of 2009 while deciding another suit to dispose of the suit as early as possible. It is needless to say that trial court will decide the suits in accordance with law and on its own merits and without being influenced by the order passed by the trial court below injunction application as well as order passed by this Court today.
[M.D.SHAH,J.] radhan